A blanket ban on sex in prison leads to prisoners failing to report rape or sexual assault for fear of punishment.

The challenge currently facing prisons with regards sexual health and public opinion is not dissimilar to that faced by Edinburgh in the 1980s in the face of the HIV crisis. That was the chilling warning heard by the Howard League Commission on sex in prisons. The Commission’s first briefing, on consensual sex in male prisons, is published today. In the 1980s, Edinburgh saw a police crackdown on heroin use that was successful in cutting the number of available syringes and equipment at the very same time as HIV was introduced into the local drug scene. The result was that drug users shared needles and HIV spread, so that the city was briefly the aids capital of europe. The crisis was eventually eased by a public health approach that included needle exchanges and the distribution of methadone. The balance between crackdowns that play to punitive public sentiment and a public health approach that will actually reduce harm and prove most effective in protecting communities is one Chris Grayling should bear in mind, as he considers a crackdown on sex in prison.

The statistics on consensual sex in men’s prisons are limited and vague – a Home Office study back in 1994/5 reported that between 1.6 and 3.4 per cent of their sample adult male prisoners admitted to being engaged in consensual sex with an inmate. However, the true figure is thought to be higher. The British Association of Sexual Health and HIV told us that while female prisoners were likely to be open about sex with each other, male prisoners were not. According to the Terrence Higgins Trust male prisons tend to be more homophobic than the wider community, making honest reporting harder. Indeed, far from being ‘cosy’ for LGBT prisoners, all the evidence suggests that they are at greater risk of discrimination and most vulnerable to sexual abuse while inside.

The prison service instruction manual states: ‘there is no rule specifically prohibiting sexual acts between prisoners, but if they are observed by someone who finds (or could potentially find) their behaviour offensive, a charge…may be appropriate.’ in practice this results in an inconsistent approach and a system ripe for abuse. Some prisoners have reported being left alone as long as they were discreet, while others reported staff trying to catch them out in order to issue them with a warning. It has also been suggested that separation and being written up can be used as a means of discriminating against openly gay prisoners, while policies preventing sex in prisons can be seen to ‘legitimise’ homophobic attitudes.

There is no denying that the issue of consensual sex in prison is a tricky one. The National Offender Management Service argued, in their evidence to us, that it is virtually impossible for staff to tell whether a relationship is consensual or coercive. It can be further complicated by the fact that what starts as consensual can later become coercive.

On a trip to the US I met Troy Isaak, a member of Just Detention International Survivors’ Council. He told me that during one period of incarceration in a Los Angeles jail he entered into a consensual relationship with another inmate but then when the relationship broke down he was repeatedly raped. Staff refused to do anything as he’d originally consented. Sex is banned in US jails.

However we must be careful not to learn the wrong lesson from cases such as this, which call for greater action in tackling the complexities of sexual abuse behind bars, not making the system more punitive for those who engage in consensual sex. A blanket ban on sex in prison leads to prisoners failing to report rape or sexual assault for fear of punishment. While a 2005 report (pdf) from the Prison Reform Trust and National Aids Trust expressed concern that ‘if sexual activity is subject to punitive sanctions, or stigmatised, the likelihood is that people will be less likely to take precautions.’ Most respondents to the Home Office study admitted they did not practice safe sex.

The Department of Health states that prisoners are more likely to be affected by blood-borne diseases, more likely to have engaged in high-risk behaviours and as a result are at higher risk of sexually transmitted infections. To ignore this and then ignore calls for help in practicing safe sex is, according to the Terrence Higgins Trust, ‘highly irresponsible and unethical.’

Her Majesty’s Prison Inspectorate, the Terrence Higgins Trust and National Aids Trust all raised concerns with the Commission about the variable access to condoms within prisons. We heard a range of approaches. Some prisons offer advice and make barrier protection, dental dams and lubrication freely available. However, in at least one privately run prison prisoners are only issued with a condom if they then return it used before being issued with another. Other prisons refuse to issue barrier protection. We received evidence from one HIV-positive prisoner who was refused protection and, as a result, went on to have unprotected sex with another inmate. We heard that some prisoners are sanctioned for requesting too many condoms. One prison governor even said they had no need to issue barrier protection as his prison contained no homosexuals. The National Aids Trust said, ‘attempts to control consensual sexual activity between prisoners risk undermining efforts to promote HIV prevention and improved sexual health in prison populations.’

What Chris Grayling and others need to remember is that this is not merely a health crisis confined to prisons: all of these prisoners will eventually return to their communities and will pass on any infections to the wider community. A policy of banning all sex in prison will not work: it will further legitimise homophobia within prisons, its implementation will result in a system ripe for abuse as well as discrimination against LGBT prisoners; it will discourage prisoners from reporting rape and sexual assault and divert attention from the real law and order issue – which is the correct management and response to occurrences of coercive sex in custody. Most importantly of all, it does nothing to address the fact that prisoners will continue to have sex and an even more punitive system will worsen the risky practices causing this public health crisis.

In the US, Just Detention International successfully showed that prison rape was not only inhumane but also cost the community far more – financially as well as socially – than successfully preventing rape behind bars. Similarly, the cost to us all will be greater in dealing with the spread of STIs than a pragmatic policy to ensure safe sex in our prison system.

Michael Amherst is on the board of Just Detention International and the Howard League Commission on Sex in Prisons